| |
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 75934-1 (consolidated with 75956-1)
Title of Case: HEATHER ANDERSEN ANDERSEN ET AL VS KING COUNTY ET AL
File Date: 07/26/2006
Oral Argument Date: 03/08/2005
SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 04-2-04964-4
Judgment or order under review
Date filed: 08/04/2004
Judge signing: Hon. William L Downing
JUSTICES
--------
Authored by Bobbe J Bridge
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Kristofer John Bundy
King Co Admin Bldg
500 4th Ave Ste 900
Seattle, WA 98104-2316
Darren E. Carnell
Office of the Prosecuting Attorney
516 3rd Ave Rm W400
Seattle, WA 98104-2385
Janine Elizabeth Joly
Office of the Prosecuting Attorney
516 3rd Ave Rm W400
Seattle, WA 98104-2385
William Berggren Collins
Attorney at Law
Higways Licenses Bldg
PO Box 40100
Olympia, WA 98504-0100
Counsel for Respondent(s)
Patricia S. Novotny
Attorney at Law
3418 NE 65th St Ste a
Seattle, WA 98115-7397
Nancy Lynn Sapiro
Northwest Women's Law Center
907 Pine St Ste 500
Seattle, WA 98101-1818
Lisa Marie Stone
NW Women's Law Center
907 Pine St Ste 500
Seattle, WA 98101-1818
Jamie D. Pedersen
Preston Gates & Ellis LLP
925 4th Ave Ste 2900
Seattle, WA 98104-1158
Bradley H. Bagshaw
Helsell Fetterman LLP
1001 4th Ave Ste 4200
Seattle, WA 98154-1154
Jennifer Suzanne Divine
Helsell Fetterman LLP
1001 4th Ave Ste 4200
Seattle, WA 98154-1154
Counsel for Respondents - Consolidated Case
Paul J. Lawrence
Preston Gates & Ellis LLP
925 4th Ave Ste 2900
Seattle WA 98104-1158 (consolidated case)
Matthew J Segal
Preston Gates & Ellis LLP
925 4th Ave Ste 2900
Seattle WA 98104-1158 (consolidated case)
Roger Ashley Leishman
Davis Wright Tremaine
1501 4th Ave Ste 2600
Seattle WA 98101-1688 (consolidated case)
Aaron Hugh Caplan
Attorney at Law
ACLU of Washington
705 2nd Ave Ste 300
Seattle WA 98104-1799 (consolidated case)
Karolyn Ann Hicks
Stokes Lawrence PS
800 5th Ave Ste 4000
Seattle WA 98104-3179
Counsel for Appellant Intervenor(s)
Steven T. O'Ban
Ellis Li & McKinstry PLLC
601 Union St Ste 4900
Seattle, WA 98101-3906
Kristen Kellie Waggoner
Ellis Li & McKinstry PLLC
601 Union St Ste 4900
Seattle, WA 98101-3906
Amicus Curiae on behalf of UNITED FAMILIES INTERNATIONAL
Paul Benjamin Linton
Attorney at Law
921 Keystone Avenue
Northbrook, IL 60062-3614
Kenneth Duane Vanderhoef
Attorney at Law
520 Pike St Ste 1330
Seattle, WA 98101-4042
Richard G. Wilkins
Professor of Law
513 Jrcb Brigham Young University
Provo, UT 84602
Amicus Curiae on behalf of AMERICAN CENTER FOR LAW & JUSTICE
Gregory D. Lucas
Attorney at Law
606 110th Ave NE Ste 100
Bellevue, WA 98004-5107
Vincent P. McCarthy
American Center for Law & Justice
8 S. Main Street
P.O. Box 1629
New Milford, CT 06776
Amicus Curiae on behalf of ALLIANCE FOR MARRIAGE
Dwight G. Duncan
Attorney at Law
333 Faunce Corner Road
North Dartmouth, MA 02747
Thomas S. Olmstead
Attorney at Law
20319 Bond Rd NE
Poulsbo, WA 98370-9013
Amicus Curiae on behalf of CONCERNED WOMEN FOR AMERICA
David Knox Dewolf
Attorney at Law
Gonzaga School of Law
PO Box 3528
Spokane, WA 99220-3528
Theresa Ann Schrempp
Sonkin & Schrempp PLLC
12715 Bel Red Rd Ste 150
Bellevue, WA 98005-2627
Amicus Curiae on behalf of FAMILY RESEARCH COUNCIL
David R. Langdon
Langdon & Shafer LLC
11175 Reading Road, Suite 103
Cincinnati, OH 45241
Todd Michael Nelson
Ferring Nelson LLP
600 Stewart St Ste 1920
Seattle, WA 98101-1238
Amicus Curiae on behalf of FAMILIES NORTHWEST
Joshua K. Baker
Attorney at Law
1413 K Street NW
Suite 100
Washington, DC 20005
Lincoln J. Miller
Sherrard & Mcgonagle
PO Box 400
Poulsbo, WA 98370-0400
Roger D Sherrard
Attorney at Law
PO Box 400
Poulsbo, WA 98370-0400
Amicus Curiae on behalf of MARRIAGE LAW FOUNDATION
William C. Duncan
Marriage Law Foundation
251 West River Park Drive
Suite 175
Provo, UT 84604
Don Edward Powell
Attorney at Law
1025 Jadwin Ave
Richland, WA 99352-3437
Monte N. Stewart
Marriage Law Foundation
251 West River Park Drive
Suite 175
Provo, UT 84604
Amicus Curiae on behalf of SENIOR SERVICES OF SEATTLE/KING COUNTY
Lisa Ellen Brodoff
Seattle University Peterson Law Clinic
1112 E Columbia St
Seattle, WA 98122-4458
Amicus Curiae on behalf of SERVICES & ADVOCACY FOR GAY LESBIAN ET AL
Lisa Ellen Brodoff
Seattle University Peterson Law Clinic
1112 E Columbia St
Seattle, WA 98122-4458
Amicus Curiae on behalf of GREATER SEATTLE BUSINESS ASSOCIATION
Nancy Dykes Isserlis
Winston & Cashatt PS
Bank of America Financial Center
601 W Riverside Ave Ste 1900
Spokane, WA 99201-0695
Amicus Curiae on behalf of INLAND NORTHWEST BUSINESS ALLIANCE
Nancy Dykes Isserlis
Winston & Cashatt PS
Bank of America Financial Center
601 W Riverside Ave Ste 1900
Spokane, WA 99201-0695
Amicus Curiae on behalf of AMERICAN PSYCHOLOGICAL ASSOCATION
Colin Jeffrey Folawn
Schwabe Williamson & Wyatt
1420 5th Ave Ste 3010
Seattle, WA 98101-2339
Salvador Alejo II Mungia
Gordon Thomas Honeywell
PO Box 1157
Tacoma, WA 98401-1157
Amicus Curiae on behalf of WASHINGTON STATE PSYCHOLOGICAL ASSOCIATION
Colin Jeffrey Folawn
Schwabe Williamson & Wyatt
1420 5th Ave Ste 3010
Seattle, WA 98101-2339
Salvador Alejo II Mungia
Gordon Thomas Honeywell
PO Box 1157
Tacoma, WA 98401-1157
Amicus Curiae on behalf of COMPASSION IN DYING OF WASHINGTON ET AL
Robert A. Free
Attorney at Law
705 2nd Ave Ste 1500
Seattle, WA 98104-1796
Ester Frances Greenfield
Attorney at Law
705 2nd Ave Ste 1500
Seattle, WA 98104-1796
Kathleen A. Wareham
Attorney at Law
3213 W Wheeler St Ste 165
Seattle, WA 98199-3245
Amicus Curiae on behalf of STATE LEGISLATORS, REPRESENTATIVES, AND SENATORS
Hugh Davidson Spitzer
Foster Pepper PLLC
1111 3rd Ave Ste 3400
Seattle, WA 98101-3299
Amicus Curiae on behalf of LIBERTARIAN PARTY OF WASHINGTON STATE
Suzanne J. Thomas
Law Offices of Suzanne J Thomas PS
1325 4th Ave Ste 940
Seattle, WA 98101-2509
Amicus Curiae on behalf of LOG CABIN REPUBLICANS OF WASHINGTON
Suzanne J. Thomas
Law Offices of Suzanne J Thomas PS
1325 4th Ave Ste 940
Seattle, WA 98101-2509
Amicus Curiae on behalf of MULTIFAITH WORKS RELIGIOUS COALITION FOR EQUALITY ET
David L. Donnan
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA 98101-3635
Vanessa Soriano Power
Stoel Rives LLP
600 University St Ste 3600
Seattle, WA 98101-3197
Amicus Curiae on behalf of PRIDE FOUNDATION ET AL
Lindsay Taylor Thompson
Thompson Gipe PC
1900 W Nickerson St Ste 209
Seattle, WA 98119-1650
Amicus Curiae on behalf of LOREN MILLER BAR ASSOCIATION ET AL
Amanda J Beane
Attorney at Law
1201 3rd Ave Ste 4800
Seattle, WA 98101-3266
Kirstin S. Dodge
Perkins Coie LLP
The Pse Bldg
10885 NE 4th St Ste 700
Bellevue, WA 98004-5579
Karen M. McGaffey
Perkins Coie LLC
1201 3rd Ave 48th Fl
Seattle, WA 98101-3029
Melissa Robertson
Perkins Coie LLP
1201 3rd Ave Ste 4800
Seattle, WA 98101-3099
Amicus Curiae on behalf of AMERICAN FEDERATION OF TEACHERS ET AL
Kathleen Phair Barnard
Attorney at Law
18 W Mercer St Ste 400
Seattle, WA 98119-3971
Amicus Curiae on behalf of HISTORY SCHOLARS
Matthew Aaron Carvalho
Heller Ehrman LLP
701 5th Ave Ste 6100
Seattle, WA 98104-7098
Andrew Kamins
Heller Ehrman LLP
701 5th Ave Ste 6100
Seattle, WA 98104-7043
Molly a Terwilliger
Heller Ehrman LLP
701 5th Ave Ste 6100
Seattle, WA 98104-7098
Michael Richard Wrenn
Heller Ehrman LLP
701 5th Ave Ste 6100
Seattle, WA 98104-7098
Amicus Curiae on behalf of LEGAL MARRIAGE ALLIANCE OF WASHINGTON ET AL
Michael Richard Heath
Cairncross & Hempelmann PS
524 2nd Ave Ste 500
Seattle WA 98104-2323
Amicus Curiae on behalf of FAMILY LAW PRACTITIONERS
P. Craig Beetham
Eisenhower & Carlson
Wells Fargo Plaza
1201 Pacific Ave Ste 1200
Tacoma WA 98402-4395
Amicus Curiae on behalf of CHILDREN'S RIGHTS ORGANIZATIONS
Breean Lawrence Beggs
Center for Justice
35 W Main Ave Ste 300
Spokane WA 99201-0119
Amicus Curiae on behalf of WOMEN'S ORGANIZATIONS
Beth A Bloom
Frank Freed Subit & Thomas
705 2nd Ave Ste 1200
Seattle WA 98104-1798
Jennifer K. Brown
Legal Mementum
395 Hudson Street
New York NY 10014
Douglas NeJaime
Irell & Manella LLP
1800 Avenue of the Stars
Suite 900
Los Angeles CA 90067
Elizabeth L. Rosenblatt
Irell & Manella LLP
1800 Avenue of the Stars
Suite 900
Los Angeles, CA 90067
Deborah A. Widiss
Legal Momentum
395 Hudson Street
New York NY 10014
A PDF version of the opinion can be found at
http://www.courts.wa.gov/newsinfo/content/pdf/759341NO1.pdf
No. 75934-1
BRIDGE, J. (concurring in dissent) -- The impact of this case upon the
plaintiff couples and their children is both far reaching and deeply
saddening. The impact extends to all of Washington's gay and lesbian
citizens and to the many fair-minded Washington citizens who hoped for a
different result in this case. And, I dare say, the result that we reach
today will be remembered more for what it does not do than for what it
does.
What we are called upon to do here is address the availability of the
civil contract of marriage -- the only characterization of the issue
presented that permits governmental intrusion into what is otherwise a
personal, private relationship between two people. The State's intrusion
is governed by the articles of our constitution. What we ought not to
address is marriage as the sacrament or religious rite -- an area into
which the State is not entitled to intrude at all and which is governed by
articles of faith. What we have not done is engage in the kind of critical
analysis the makers of our constitution contemplated when interpreting the
limits on governmental intrusion into private civil affairs; what we have
done is permit the religious and moral strains of the Defense of Marriage
Act (DOMA) to justify the State's intrusion. As succinctly put by amici
the Libertarian Party of Washington State and the Log Cabin Republicans of
Washington: "To ban gay civil marriage because some, but not all,
religions disfavor it, reflects an impermissible State religious
establishment." Amicus Curiae Br. of the Libertarian Party of Washington
State et al. at 11. After all, we permit civil divorce though many
religions prohibit it -- why such fierce protection of marriage at its
beginning but not its end?
If the DOMA is really about the "sanctity" of marriage, as its title
implies, then it is clearly an unconstitutional foray into state-sanctioned
religious belief. If the DOMA purports to further some State purpose of
preserving the family unit, as the plurality would interpret it, then I
cannot imagine better candidates to fulfill that purpose than the same-sex
couples who are the plaintiffs in these consolidated actions.
I agree with Justice Fairhurst that the DOMA wholly fails a rational basis
review. And, I agree that our nation's jurisprudence suggests we should
hold that where a union is not prohibited by age or bloodlines
(restrictions grounded in legitimate state interests in the protection of
minors and preventing congenital birth defects), it is a fundamental right
of an individual to marry the person of his or her choice. Justice
Fairhurst also correctly notes that the plurality and concurrences
disingenuously frame the question before us. Dissent (Fairhurst, J.) at 2.
They ask not whether the right to marry is fundamental, or whether a
prohibition on same-sex marriage strengthens the putative state interest in
the frequency and longevity of heterosexual marriage (a dubious policy
clearly at odds with our liberalized laws of marital dissolution), but
whether there is a fundamental right to "same-sex" marriage. Just as the
United States Supreme Court majority did in Bowers v. Hardwick 20 years
ago, today's plurality and Justice J.M. Johnson's concurrence frame the
issue before us so as to ignore not only petitioners' fundamental right to
privacy but also the legislature's blatant animosity toward gays and
lesbians. See Bowers v. Hardwick, 478 U.S. 186, 199, 106 S. Ct. 2841, 92
L. Ed. 2d 140 (1986) (Blackmun, J., dissenting). The passage of time and
prudent judgment revealed the folly of Bowers, a mistake born of bigotry
and flawed legal reasoning. Lawrence v. Texas, 539 U.S. 558, 562-78, 123
S. Ct. 2472, 156 L. Ed. 2d 508 (2003). Alas, the same will be said of this
court's decision today.
Yet while I wholeheartedly agree with Justice Fairhurst's conclusions that
it is the status of marriage itself that is a fundamental right, that the
choice of one's spouse implicates fundamental liberty interests, and that
the DOMA does not even satisfy rational basis review, I write separately,
in this significant issue of our time, to set forth additional grounds for
holding the DOMA unconstitutional.
Constitutional Duty of This Court
The plurality and concurrences justify their result by asserting that it is
not our place to require equality for Washington's gay and lesbian citizens
by declaring the DOMA unconstitutional. Of course, had the United States
Supreme Court adopted the plurality's position, there would have been no
Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S. Ct. 686, 98 L.
Ed. 873 (1954); there would have been no Lawrence, 539 U.S. at 579, in
which the Court recognized that "times can blind us to certain truths and
later generations can see that laws once thought necessary and proper in
fact serve only to oppress." Indeed, it was the California Supreme Court
in 1948 that first declared an antimiscegenation law unconstitutional,
Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17, 29 (1948), a position adopted
by the United States Supreme Court in Loving v. Virginia, 388 U.S. 1, 87 S.
Ct. 1817, 18 L. Ed. 2d 1010 (1967), 20 years later. Had the Court adopted
the current plurality's mindset, it would not have rectified a long list of
now obvious wrongs. See City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985) (overturning a city
zoning ordinance because it discriminated against the developmentally
disabled, finding no rational basis for the ordinance in negative public
attitudes toward the disabled); Plyler v. Doe, 457 U.S. 202, 102 S. Ct.
2382, 72 L. Ed. 2d 786 (1982) (overturning Texas legislation that excluded
undocumented children from public schools); Zablocki v. Redhail, 434 U.S.
374, 98 S. Ct. 673, 54 L. Ed. 2d 618 (1978) (striking down Wisconsin
statute prohibiting marriage absent judicial determination that all support
obligations had been met); Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50
L. Ed. 2d 397 (1976) (overturning Oklahoma underage drinking legislation
because it discriminated against men); Sugarman v. Dougall, 413 U.S. 634,
93 S. Ct. 2842, 37 L. Ed. 2d 853 (1973) (overturning New York statute that
imposed a flat ban on employment of aliens in competitive exam-based civil
service positions); United States Dep't of Agric. v. Moreno, 413 U.S. 528,
93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973) (rejecting portion of the food
stamp act that excluded households containing unrelated individuals);
Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583
(1973) (overturning a federal statute that discriminated against female
members of the armed services); Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705,
35 L. Ed. 2d 147 (1973) (invalidating Texas statute that made procuring an
abortion a crime absent a threat to the life of the mother); Reed v. Reed,
404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971) (overturning portion of
the Idaho probate code that discriminated against women); Harper v. Va.
State Bd. of Elections, 383 U.S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169
(1966) (overturning a Virginia poll tax); Griswold v. Connecticut, 381 U.S.
479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965) (striking down a statute
prohibiting the use of birth control); Sweatt v. Painter, 339 U.S. 629, 70
S. Ct. 848, 94 L. Ed. 1114 (1950) (overturning Texas legislation
restricting admission to the University of Texas School of Law to white
students); Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed.
1655 (1942) (striking down Oklahoma's criminal sterilization law); Pierce
v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925)
(invalidating statute prohibiting parents from sending their children to
private schools).
The plurality too easily dismisses the proper role of the judiciary to
protect the constitutional rights of those who have been historically
disenfranchised from the political process. "{T}he whims of the majority
cannot be invoked to interfere with fundamental rights" and "we must be
ever on our guard, lest we erect our prejudices into legal principles."
Amicus Br. of the Libertarian Party of Washington State et al. at 5 (citing
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S. Ct. 1178,
87 L. Ed. 1628 (1943)); New State Ice Co. v. Liebmann, 285 U.S. 262, 311,
52 S. Ct. 371, 76 L. Ed. 747 (1932) (Brandeis, J., dissenting). This is
never more true than when legislation is specifically targeted at a
politically unpopular minority.1 Courts have a duty to take a searching
look at any such legislation. Lawrence, 539 U.S. at 580 (O'Connor, J.,
concurring) ("When a law exhibits such a desire to harm a politically
unpopular group, we have applied a more searching form of rational basis
review."); Romer v. Evans, 517 U.S. 620, 633-35, 116 S. Ct 1620, 134 L. Ed.
2d 855 (1996). Judges William L. Downing and Richard D. Hicks, the authors
of the trial court opinions in these cases, are to be commended for their
uncommon courage and common sense in facing this issue head on.
Legal authorities do not dispute the fact that gays and lesbians have been
subjected to a history of discrimination. High Tech Gays v. Defense Indus.
Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990); see Evan
Gerstmann, The Constitutional Underclass: Gays, Lesbians, and the Failure
of Class-Based Equal Protection 66 (1999) (noting that no court has ever
denied that gays and lesbians have suffered a history of discrimination).
Indeed, the plurality here does not dispute it. Plurality at 18.
Nevertheless, it is essential to briefly explore the history of prejudice
against gays and lesbians in this country -- as the plurality does not --
because we cannot decide this case in a vacuum.
After Prohibition ended in 1933, it was illegal in many states for bars and
restaurants to serve gay and lesbian patrons. George Chauncey, Why
Marriage? The History Shaping Today's Debate Over Gay Equality 7 (2004).
In the 1930s, Hollywood prohibited the production of films that made even
the slightest reference to homosexuality, a ban that survived into the
1960s. Id. at 5-6. During the McCarthy era, individuals suspected of
being gay and lesbian were purged from government offices at an even higher
rate than suspected communists; until the late 1990s, gays and lesbians
could be barred from federal employment solely on the basis of their sexual
orientation. Id. at 6-7. Until 2003, sexual practices associated with
homosexuality were cause for criminal prosecution in many states. See
Lawrence, 539 U.S. 558.
As recently as 2004, hate crimes motivated by bias against sexual
orientation accounted for 15 percent of all hate crimes committed that
year; within that 15 percent, approximately 97 percent of the crimes
committed were against homosexuals as opposed to heterosexuals. Fed.
Bureau of Investigation, Hate Crime Statistics 2004, 6-7 (2005). Until
January 2006, gay and lesbian Washingtonians feared their livelihoods might
be in jeopardy if their sexual orientation were disclosed. See Engrossed
Substitute H.B. (ESHB) 2661, 59th Leg., Reg. Sess., at 2-3 (Wash. 2006)
(prohibiting discrimination against homosexuals in the workplace, a
practice previously condoned by this court in Gaylord v. Tacoma Sch. Dist.
No. 10, 88 Wn.2d 286, 559 P.2d 1340 (1977)).
In Washington, openly gay and lesbian men and women continue to hold
political office in numbers lower than their presumed percentage of the
population. Br. of Amici Curiae Pride Foundation et al. at 18 n.20; see
Susan Paynter, Gregoire Address to Gays is a Good Start, Seattle Post-
Intelligencer, Nov. 18, 2005, at D1 (only four openly gay members in
Washington's legislature). Their ability to serve in our nation's armed
forces is truncated. 10 U.S.C. sec. 654. In many states, gays and
lesbians continue to fear their children will be removed from their custody
as a result of their sexual orientation. Donald K. Sherman, Sixth Annual
Review of Gender and Sexuality Law: Child Custody and Visitation, 6 Geo.
J. Gender & L. 691, 706-10 (2005) (surveying states in which a parent's
homosexuality may or will negatively effect custody and visitation).
Likewise, they may encounter significant struggles in efforts to adopt.
Teemu Ruskola, Minor Disregard: The Legal Construction of the Fantasy That
Gay and Lesbian Youth Do Not Exist, 8 Yale J.L. & Feminism 269, 297-302
(1996) (discussing statutory bans on homosexual adoption). And today in
Washington, they are denied the economic, social, and emotional benefits of
a legal marriage. Plurality at 63. Historically, homosexuals have been
the object of what Justice Brennan calls "pernicious and sustained
hostility, and it is fair to say that discrimination against homosexuals is
'likely . . . to reflect deep-seated prejudice rather than . . .
rationality.'" Rowland v. Mad River Local Sch. Dist., 470 US. 1009, 1014,
105 S. Ct. 1373, 84 L. Ed. 2d 392 (1985) (Brennan, J., dissenting)
(dissenting in a denial of certiorari in a case involving discrimination
against homosexuals (quoting Plyler, 457 U.S. at 216 n.14)). When
reviewing laws that discriminate against gays and lesbians, there is no
justification for courts to ignore the "pernicious and sustained hostility"
gays and lesbians suffered through the decades and continue to face. Id.
The plurality asserts that gays and lesbians today are not politically
powerless. Plurality at 19-20. Yet the DOMA relies on the notion that the
institution of marriage needs to be defended from gays and lesbians, rather
like anti-papal laws once sought to "defend" a protestant way of life from
an onslaught of Catholic immigrants, and segregation laws sought to
"defend" white-privilege from people of color. See Peter H. Schuck, Uri
and Caroline Bauer Memorial Lecture: The Perceived Values of Diversity,
Then and Now, 22 Cardozo L. Rev. 1915, 1924-25 (2001). Like those
antiquated laws of yesteryear, today's decision validates a legislative
enactment largely born of animus and ignorance and is evidence in and of
itself of the lack of meaningful political power gays and lesbians hold.
But there are other indicators. In Washington, there are only four openly
gay legislators -- none in a statewide executive or judicial capacity.
Paynter, supra, at D1. As the plurality notes, the legislature recently
passed a bill prohibiting discrimination against gays and lesbians in jobs,
finance, and housing, but that law was the culmination of a 30-year battle
and a narrow, one-vote win. And we cannot ignore the fact that while gays
and lesbians in Washington now have an avenue of recourse when faced with
discrimination in housing, lending, and on the job, there are many other
inequalities the law does not address for gays and lesbians, particularly
those involved in a same-sex relationship.2 What is more, gays and
lesbians nationwide have not enjoyed the same kind of small victories;
Washington is just one of only 17 states to pass an antigay discrimination
bill. Chris McGann, A Long-Awaited Win for Gay Rights; Senate OKs State
Anti-Bias Bill, Seattle Post-Intelligencer, Jan. 28, 2006, at A1.
The plurality focuses only on the ability of gays and lesbians to "attract
the attention of the lawmakers," Cleburne Living Center, 473 U.S. at 445.
Plurality at 19-20. But a limited number of protective laws do not a
powerful contingent make, particularly where they do not provide
comprehensive equal rights. The critical and commercial success of
television shows like Will and Grace (NBC 1998-2006) and films like
Brokeback Mountain (Focus Features 2005) notwithstanding, the place of gays
and lesbians in our cultural and social landscape continues to be marked by
disparity. As noted above, heterosexuals have little reason to fear they
will be attacked if their sexual orientation is discovered; gays and
lesbians, on the other hand, were second only to people of color in
Washington's 2004 statewide statistics for reported hate crime incidents,
experiencing more criminal animosity than religious or ethnic groups. Hate
Crime Statistics, supra, at 58. In Seattle, a locality that has had
antidiscrimination laws on the books on behalf of gays and lesbians for
many years, hate crimes motivated by sexual orientation were equal to those
motivated by race. Id. at 59. This is sadly strong evidence indicating
that the attention of lawmakers does not always translate into personal and
political power.
Those who believe gays and lesbians enjoy substantial political power often
point to the perceived economic success of gays and lesbians, claiming it
translates into political clout. Romer, 517 U.S. at 645-46 (Scalia, J.,
dissenting) ("{B}ecause those who engage in homosexual conduct tend to . .
. have high disposable income . . . they possess political power much
greater than their numbers, both locally and statewide."). But in reality,
evidence suggests that gays and lesbians as a class are no more
economically advantaged than similarly situated heterosexuals. In fact,
studies show that gay men, at least, make 17 to 28 percent less than
straight men. M. V. Lee Badgett, Money, Myths, and Change: The Economic
Lives of Lesbians and Gay Men 45-46 (2001).3 Yet, a commonly produced
stereotype involves that of the urban, affluent gay couple. Not only is it
unlikely that gays and lesbians as a group enjoy a markedly higher
disposable income indicative of political power, but the reliance on this
largely false stereotype suggests that laws discriminating against gays and
lesbians are rooted in prejudice, not rationality.4
The political vigor of gays and lesbians remains lackluster. We have never
had an openly gay president, and there are very few openly gay members on
any high court -- in Washington, D.C., Washington State, or elsewhere. See
William C. Duncan, "A Lawyer Class": Views on Marriage and "Sexual
Orientation" in the Legal Profession, 15 BYU J. Pub. L. 137, 147-49 (2001).
There has never been an openly gay or lesbian individual in the United
States Senate, and only three currently serve in the House of
Representatives. Gays and Lesbians Win Big at the Polls, The Advocate,
Dec. 7, 2004, at 16. Nationwide, 511,000 people hold office at the local,
state, and national level. Of those, a mere 305 are openly gay. Lornet
Turnbull, Gay and Lesbian Officials to Meet, Seattle Times, Nov. 18, 2005,
at B1. Despite laudable civil rights successes over the years, gays and
lesbians remain a political underclass in our nation.5
"A prime part of the history of our Constitution . . . is the story of the
extension of constitutional rights and protections to people once ignored
or excluded." United States v. Virginia, 518 U.S. 515, 557, 116 S. Ct.
2264, 135 L. Ed. 2d 735 (1996). Both the historical and current
circumstances of gay and lesbian people in this country establish they are
a minority that has not enjoyed political protection. This country's
judiciary, led by the United States Supreme Court, has not shied away from
protecting such minorities from discrimination, even when doing so required
invalidation of politically popular legislation. The judiciary has been
similarly resolute when faced with legislation that infringes upon a
fundamental right protected by our constitution. It is not only our
prerogative, but our duty under the tripartite system of government to
provide prompt relief for violations of individual civil rights.
State Interests Supporting the DOMA
While Justice Fairhurst's dissent concludes that there is no rational
relationship between the purposes behind the DOMA and the legislation
itself, a conclusion with which I agree, I want to here express discomfort
with the lack of legitimate state interest supporting the DOMA. Whatever
bases the plurality and Justice J.M. Johnson's concurrence assert to
support the DOMA, the legislative history of the law reveals that it stems,
in substantial part, from thinly-veiled animosity against a minority group,
animosity that is rooted in moral and religious objections to same-sex
relationships. Its very title asserts as much -- "defense" of marriage --
"defense" from what? Against whom? The DOMA ought to be recognized for
the discriminatory enactment that it is, and rejected as such.
To many, same-sex relationships and same-sex marriages are contrary to
religious teachings. But none of the plaintiffs in the cases before us
today seek acceptance of same-sex marriage within a particular religious
community. They seek access to civil marriage. Some churches and
religious organizations may refuse to solemnize same-sex unions, and that
is their right in the free exercise of religion under our constitution. A
religious or moral objection to same-sex marriage is not, however, a
legitimate state interest that can support the DOMA.6
First, it is important to emphasize the secular nature of civil
marriage. As early as the Enlightenment, marriage began to be seen as a
private contract. Stephanie Coontz, Marriage, A History: From Obedience to
Intimacy or How Love Conquered Marriage 146-47 (2005); Chauncey, supra, at
79-80.7 In early America, New England's religious dissenters rejected
church regulation of marriage. Chauncey, supra, at 80. In the southern
colonies, the Church of England retained its authority over civil marriage
a bit longer, but after the American Revolution, "all states recognized
marriage as a purely civil matter." Id. Americans could choose to subject
themselves to their church's religious laws, but doing so was purely
voluntary. Id. As a legal matter, "marriages had legal standing only as a
civil contract and status." Id.
In Washington, the secular nature of civil marriage was recognized by the
territorial legislature as early as 1854. In re Estate of Wren, 163 Wash.
65, 72, 299 P. 972 (1931) (describing law enacted by the first legislature
of the territory of Washington in 1854, which defined marriage as a civil
contract). To this day, the legislature defines marriage as a civil
contract and it does not require religious solemnization for a marriage to
be valid. RCW 26.04.010, .050; Wash. Statewide Org. of Stepparents v.
Smith, 85 Wn.2d 564, 569, 536 P.2d 1202 (1975). "It is apparent that the
purpose of this statute was to make it clear that marriage is governed by
civil law rather than by ecclesiastical law." Statewide Org. of
Stepparents, 85 Wn.2d at 569.8 When partners enter into the civil marriage
contract, they assume rights, duties, and obligations defined by the State.
Krieg v. Krieg, 153 Wash. 610, 611, 278 P. 223 (1929) (emphasizing that the
marriage contract is unusual in that it is one in which the State has an
interest and the State may impose conditions upon the contract).
As the Supreme Judicial Court of Massachusetts recognized, the State's
interest in civil marriage arises from its police power. Goodridge v.
Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d 941, 954 (2003). Civil
marriage "anchors an ordered society by encouraging stable relationships
over transient ones." Id. Civil marriage is central to the way in which
the State "identifies individuals, provides for the orderly distribution of
property, ensures that children and adults are cared for and supported
whenever possible from private rather than public funds, and tracks
important epidemiological and demographic data." Id. Civil marriage is a
state-conferred legal status, the existence of which gives rise to benefits
and burdens reserved exclusively to the citizens engaged in the marital
relationship. Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, 58 (1993).
Because a marriage license only acts as a trigger for state-conferred
benefits, the State's role is not to endorse certain morals, lifestyles, or
relationships when it grants a marriage license, but rather it should only
identify those entitled to the benefits of marital status. Baker v. State,
170 Vt. 194, 744 A.2d 864, 899 (1999) (Johnson, J., concurring/
dissenting).
Yet the DOMA's legislative history reveals that what the proponents of
the legislation intended was to impose religious and moral restrictions on
the state regulated civil institution of marriage.9 In addition, there is
ample evidence in the legislative history that the DOMA's supporters were
motivated by animus, an undisguised desire to discriminate against gays and
lesbians. Each of these purposes has been rejected by the United States
Supreme Court as illegitimate interests that cannot support legislation
targeting a minority group.
Included in the legislative history materials of Washington's DOMA is a
transcript of Senator Byrd's testimony to the United States Senate in favor
of the federal DOMA. In that argument, Senator Byrd spoke of Judeo
Christian tradition, quoted several Bible verses, and predicted that
acceptance of families with two mothers or two fathers would be
catastrophic for society. Tr. of Senator Byrd's Remarks at 5-6, 10-11.
The Washington director of Concerned Women for America called on our
legislators to remember that marriage is a "God-ordained institution."
Test. of Anne Ball at 1 (quoting biblical passages). She also claimed that
legally sanctioning same-sex marriage "does not mean we will be 'slouching
toward Gomorrah.' Instead, we will be in an all-out sprint." Id.
Offering another biblical reference, a different proponent of the DOMA
argued that only heterosexual marriages are sanctified by God. Test. of
Leilani Lutak at 2.
During floor debate, Representative Mulliken opined that homosexuality is
"against the Creator's design," and that homosexuality is "contrary to
God's will." House Floor Debate (Feb. 4, 1998), audio recording by TVW,
Washington State's Public Affairs Network, available at . Other
representatives and senators explained that the DOMA's ban on same-sex
marriage codified their view of God's intentions. Lynda V. Mapes, House
Passes Ban on Gay Marriages -- Backers Say Bill Defends "God's Choice,"
Seattle Times, Feb. 5, 1998. Several other representatives referred to the
religious debate surrounding the bill. (Murray, Dickerson, Mulliken,
Appelwick). Representatives Dickerson and Murray lamented the religious
intolerance reflected in the legislation. House Floor Debate, supra.10
However, religious restrictions on the institution of marriage have never
governed civil marriage in this country, nor would it be constitutionally
permissible for them to do so. For example, historically many religions
have strictly forbidden marriage outside of the denomination, but these
churches could not prevent interdenominational civil marriages because
"marriage was {ultimately} a state matter, not subject to . . . religious
restrictions." Chauncey, supra, at 80-81 (citing The Roman Catholic Code
of Canon Law (1918) and statements issued by protestant denominations
forbidding marriage to Catholics). This court cannot endorse the use of
state law to impose religious sensibilities or religiously-based moral
codes on others' most intimate life decisions. Lawrence, 539 U.S. at 571;
see also Chauncey, supra, at 85-86. The DOMA reflects a religious
viewpoint; religious doctrine should not govern state regulation of civil
marriage.
Furthermore, even absent a religious objection to same-sex marriage, moral
judgment is not a sufficiently valid interest to support upholding a law
that singles out a minority group for disparate treatment. Lawrence, 539
U.S. at 577-78 (adopting the rationale of Justice John Paul Stevens'
dissenting opinion in Bowers, 478 U.S. 186). As evidenced by its title and
plain language, the primary purpose of the DOMA is to defend the
traditional institution of marriage, and throughout the legislative history
of the bill are references to "protecting" the institution. Final Bill
Report, ESHB 1130, 55th Leg., Reg. Sess., at 3 (Wash. 1998); House Bill
Report, Engrossed Substitute S.B. (ESSB) 5398, 55th Leg., Reg. Sess., at 3
(Wash. 1997); Senate Bill Report, ESHB 1130, 55th Leg., Reg. Sess., at 2
(Wash. 1997). The plain language of the legislation reflects the
legislature's intent to exclude an entire class of people from the
institution of civil marriage.11
The Final House Bill Report reflects that testimony in favor of the bill
included the opinion that "{w}e shouldn't lower our moral standards or
allow the concept of family to be distorted by a minority." Final Bill
Report, ESHB 1130, supra, at 4. The Senate committee debate included
testimony that "{d}eviating from moral foundations causes devastating
impact on families and children in particular." House Bill Report, ESSB
5398, supra, at 1. In support of the DOMA, the Washington Director of
Concerned Women for America complained same-sex marriage would lead to
children being taught that same-sex marriage is the moral equivalent of
opposite-sex marriage. Test. of Anne Ball at 1. She also characterized
the gay civil rights movement as a campaign to call "wrong right and right
wrong." Id.; see also Test. of Forrest Messenger at 2 (arguing that same-
sex marriage would reduce "moral standards").
Moral judgment of a minority class of citizens is inherent in the DOMA.
Yet the United States Supreme Court recently emphasized that "'the fact
that the governing majority in a State has traditionally viewed a
particular practice as immoral is not a sufficient reason for upholding a
law prohibiting the practice.'" Lawrence, 539 U.S. at 577-78 (quoting
Bowers, 478 U.S. at 216 (Stevens, J., dissenting)); see also id. at 582
(O'Connor, J., concurring) ("Moral disapproval of this group, like a bare
desire to harm the group, is an interest that is insufficient to satisfy
rational basis review under the Equal Protection Clause."). While the
Lawrence Court explicitly did not address the issue of same-sex marriage,
rightly so since that issue was not before it, the Court's emphasis on this
principle is central to the Lawrence opinion.12
Finally, I agree with one commentator who has opined that the legislature's
moral stance in framing the DOMA amounts to animosity with a nicer name.
Note: Litigating the Defense of Marriage Act: The Next Battleground for
Same-Sex Marriage, 117 Harv. L. Rev. 2684, 2697 (2004). See also Lawrence,
539 U.S. at 601 (Scalia, J., dissenting) (opining that "'preserving the
traditional institution of marriage' is just a kinder way of describing the
State's moral disapproval of same-sex couples" (quoting id. at 585)
(O'Connor, J., concurring)). Even ignoring religious underpinnings, "bare
{legislative} desire to harm a politically unpopular group cannot
constitute a legitimate governmental interest." Moreno, 413 U.S. at 534.
Discrimination and animosity are not legitimate state interests. Id.; see
also Romer, 517 U.S. at 634 (legislation "born of animosity" toward gays
and lesbians is unconstitutional). It is our duty to ensure that
legislative classifications are not drawn "for the purpose of
disadvantaging the group burdened by the law." Romer, 517 U.S. at 633.
There exists manifold evidence of overt animosity in the legislative
history of the DOMA. During floor debate, Representative Murray noted that
the prime sponsor of the DOMA advocated that homosexuals be removed from
American society and suggested that homosexuals can and should be
"reprogrammed." House Floor Debate, supra. A written statement in support
of the DOMA argued that marriage should not be "diluted" by extension to
same-sex couples and suggested that homosexual marriages could not
contribute to society in the same way that opposite-sex marriages do.
Statement of Professor Lynn D. Wardle at 3-4. Another proponent of the
DOMA characterized homosexual people as inherently more promiscuous than
heterosexual people and "broken." Test. of Leilani Lutak at 1-2. Another
explained that in her view, good parenting and homosexuality are mutually
exclusive. Test. of Suzanne Cook at 2.
Other members, during floor debate in both houses and testimony in
committee, decried the discriminatory intent and intolerance motivating the
legislation. Representative Appelwick and Senators Thibaudeau, Fine, Kohl,
and McAuliffe condemned the hostility underlying the bill. House Floor
Debate, supra; Senate Floor Debate (Feb. 6, 1998), audio recording by TVW,
Washington State's Public Affairs Network, available at ; Final Bill
Report, ESHB 1130, supra, at 4 ("The bill represents the use of people's
hate and fear to try and destroy families that are loving, caring,
nurturing, and ordinary in every other way."); Senate Bill Report, ESSB
5398, supra, at 1. The League of Women Voters noted that the legislation
singled out gay and lesbian couples, unfairly equating them with "criminal
bigamists and those committing incest." Letter from League of Women Voters
of Washington at 1 (Feb. 4, 1997).Like Justice Fairhurst, I also take issue
with the notion that children thrive better in opposite-sex households than
in same-sex households. It is important to note that some of the studies
about the negative effects of fatherlessness or motherlessness contained in
the record might more accurately measure the growth and development of
children raised in single-parent homes, not in homes headed by two parents
of the same sex.13 Concurrence (J.M. Johnson, J.) at 38 n.42 (citing
Clerk's Papers (CP) at 372). Or, the results of some studies might be
skewed by the specter of an acrimonious divorce between two heterosexual
parents. Id.14
Most importantly, even if numerous reputable scientific studies were to
conclusively show that children raised in same-sex households are seriously
disadvantaged (a development I very much doubt would occur), those problems
are not solved by the DOMA, since homosexual couples may raise children
whether they are married or not. And, since same-sex couples can and will
(and should) raise children together, the economic and social benefits
denied to those couples through the DOMA are also denied to their children.
Rather than protecting children, the DOMA harms them.15 The DOMA does
nothing to fortify or preserve heterosexual marriage.
Thus, while I agree with Justice Fairhurst that the complete lack of
connection between the plurality's asserted state interests and the denial
of marriage to homosexuals reveals that animus motivated the DOMA, it is
necessary to confront the overt evidence of discriminatory intent behind
this law. These disturbing aspects of the DOMA's legislative history are a
piece of this debate that cannot be ignored. The DOMA is, at best, a
"classification of persons undertaken for its own sake, something the Equal
Protection Clause does not permit." Romer, 517 U.S. at 635. At worst, the
DOMA amounts to the use of state law to enforce religious and moral
objections to gays and lesbians in general and to same-sex relationships in
particular. It is a deplorable consequence that the plurality condones.
The Equal Rights Amendment
The plurality and concurrence also conclude that the DOMA does not
violate Washington's Equal Rights Amendment (ERA), Const. art. XXXI, sec.
1, which provides, "{e}quality of rights and responsibility under the law
shall not be denied or abridged on account of sex." I disagree with the
plurality's reading of the ERA and believe the plurality ignores the nearly
absolute prohibition against discrimination based on sex that this court
has interpreted the ERA to create in the decades since Singer v. Hara, 11
Wn. App. 247, 522 P.2d 1187 (1974). Moreover, Justice J.M. Johnson's
concurrence fails to appreciate that the ERA ultimately protects the rights
of the individual under the law. Thus, both the plurality and the
concurrence are too quick to reject the Loving analogy. 388 U.S. at 12.
The DOMA violates the ERA because it discriminates on the basis of
sex. A woman cannot marry the woman of her choice but a man can marry the
woman of his choice. In other words, the only thing preventing plaintiff
Heather Andersen from marrying her partner, Leslie Christian, is the fact
that Andersen is a woman. Andersen should no more readily be prohibited
from marrying her partner than she is from voting for president or
practicing law. Plaintiffs David Serkin-Poole and Michael Serkin-Poole
should no more readily be prohibited from marrying than they are prohibited
from attending nursing school or raising children. Of course, it also goes
without saying that, regardless of the historical discrimination against
women that was the catalyst for the ERA, it protects both men and women
from discrimination based on gender. Guard v. Jackson, 132 Wn.2d 660, 666,
940 P.2d 642 (1997) (holding wrongful death statute, as applied,
discriminated against a man).
In the decades since the Court of Appeals decided Singer in 1974, this
court has imposed a strict reading of the ERA. Washington is one of only
two states that applies an "absolute" standard of review to sex-based
classifications that is even more narrow than strict scrutiny. Thomas C.
Schroeder, Note & Comment: Does Sex Matter? Washington's Defense of
Marriage Act Under the Equal Rights Amendment of the Washington State
Constitution, 80 Wash. L. Rev. 535, 543 (2005); Guard, 132 Wn.2d at 663-64;
SW Wash. Chapter, Nat'l Elec. Contractors Ass'n v. Pierce Co., 100 Wn.2d
109, 127, 667 P.2d 1092 (1983) ("The ERA absolutely prohibits
discrimination on the basis of sex and is not subject to even the narrow
exceptions permitted under traditional 'strict scrutiny.'"); Darrin v.
Gould, 85 Wn.2d 859, 871, 540 P.2d 882 (1975) (The ERA "added something to
the prior prevailing law by eliminating otherwise permissible sex
discrimination if the rational relationship or strict scrutiny tests were
met"). "The ERA mandates equality in the strongest of terms and absolutely
prohibits the sacrifice of equality for any state interest, no matter how
compelling." Elec. Contractors Ass'n, 100 Wn.2d at 127.
The ERA's absolute prohibition is subject to only two narrow exceptions.
Guard, 132 Wn.2d at 664. The ERA is not violated when the classification
is based on an actual physical difference between the sexes or when the
classification is part of a program designed to alleviate effects of past
discrimination and attain equality in fact. Id. (citing City of Seattle v.
Buchanan, 90 Wn.2d 584, 584 P.2d 918 (1978); Elec. Contractors, 100 Wn.2d
at 127). Thus, absent application of these exceptions, no sex-based
classification is allowed in Washington, regardless of the purported
government interest. Surely, the DOMA does not survive this absolute
prohibition.
This absolute reading of the ERA has evolved since Singer, calling the
reasoning of that case into question. The Singer court argued that
Washington law denied same-sex couples the right to marry, not due to
gender, but because of a definition of marriage that necessitates an
opposite-sex couple. In other words, discrimination based on gender was
permissible in that case because opposite-sex marriage is the "traditional"
definition of marriage. As other courts have noted, the Singer court's
logic amounts to "tortured and conclusory sophistry." Baehr, 852 P.2d at
63. This is especially so in the face of the high burden required to
justify classifications based on sex. As the United States Supreme Court
recently noted, constitutional law can mandate change with an evolving
social order. Lawrence, 539 U.S. at 577-78; see also Loving, 388 U.S. at
10-12. Mere reliance on tradition was not enough to justify discriminatory
legislation in the face of rational basis review; surely tradition cannot
withstand the ERA's absolute prohibition.
In rejecting the plaintiffs' ERA claim, the plurality and the concurrence
rely on the equal application theory, asserting that because the DOMA
restricts men and women equally as classes (because it prohibits both
lesbians and gay men from marrying same-sex partners), there is no sex
discrimination here. But this equal application theory, as applied to the
institution of marriage, has already been rejected by the United States
Supreme Court in Loving:
Thus, the State contends that, because its miscegenation statutes punish
equally both the white and the Negro participants in an interracial
marriage, these statutes, despite their reliance on racial classifications
do not constitute an invidious discrimination based upon race. . . . {W}e
reject the notion that the mere "equal application" of a statute containing
racial classifications is enough to remove the classification from the
Fourteenth Amendment's proscriptions of all invidious racial
discriminations . . . . In the case at bar . . . we deal with statutes
containing racial classifications, and the fact of equal application does
not immunize the statute from the very heavy burden of justification which
the Fourteenth Amendment has traditionally required of state statutes drawn
according to race.
Loving, 388 U.S. at 8-9. The same logic holds true for classifications
based on sex in Washington under the ERA. Mere equal application of the
DOMA is not enough to remove it from the ERA's absolute prohibition against
sex-based classification; equal application does not immunize the DOMA from
the ERA's heavy burden.
The plurality and concurrence respond by noting that the Loving Court
also discussed the history of discrimination against African-Americans and
the historical use of antimiscegenation laws to promote white supremacy.
The plurality and concurrence argue that absent this history, the DOMA can
survive the test that antimiscegenation laws failed.
However, this argument, and indeed the equal application theory at its
core, depends upon the assumption that the ERA was intended to prohibit
only broad-based discrimination on the basis of sex without regard for
individual impacts. For example, under the equal application theory
adopted by the plurality and concurrence, a state law could require that
upon dissolution of a marriage, all female children must reside with the
mother and all male children must reside with the father. See Baker, 744
A.2d at 906 n.10 (1999) (Johnson, J., concurring/ dissenting). Similarly
under the equal application theory, a facially "neutral" law could prohibit
all people from holding jobs traditionally held by persons of the opposite
sex. See Stephen Clark, Same-Sex But Equal: Reformulating the
Miscegenation Analogy, 34 Rutgers L. J. 107, 143-44 (2002). Because such
laws would facially apply equally to both sexes, they would not violate the
ERA under the equal application theory.
It is simply disingenuous to turn a blind eye toward the individual
application of the statute; simply put, there is little doubt that the DOMA
was enacted because of, not merely in spite of, its adverse effects upon
gays and lesbians. Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457,
470, 102 S. Ct. 3187, 73 L. Ed. 2d 896 (1982) (overturning a Washington
initiative, despite its facially neutral language, because of its obvious
"substantial and unique" effect upon racial minorities). The Loving Court
recognized the individual character of the freedom at stake: "{u}nder our
Constitution, the freedom to marry, or not marry, a person of another race
resides with the individual and cannot be infringed by the State." Loving,
388 U.S. at 12 (emphasis added). Moreover, this court has analyzed the
individual impact of government discrimination in prior ERA cases. Guard,
132 Wn.2d at 666 (analyzing whether the statute at issue in that case, as
applied, was discriminatory); State v. Wood, 89 Wn.2d 97, 103, 569 P.2d
1148 (1977) (considering an as applied challenge); Darrin, 85 Wn.2d at 875
(though challenged regulation was based on justification that a majority of
girls would be unable to compete with boys in contact football, there was
no finding that what was true for a majority of girls was true for the
particular plaintiffs). The equality of the sexes required by the ERA
begins and ends with the rights of the individual under the law. Accord
Deane v. Conaway, No. 24-C-04-005390, 2006 WL 148145, at *5-6 (Baltimore
City Cir. Court Jan. 20, 2006). In every instance where a man is denied
the ability to marry the man of his choice, but a woman is not, that man
bears a burden that the woman does not. As applied, the DOMA discriminates
against the female plaintiffs who wish to marry their female partners and
the male plaintiffs who wish to marry their male partners.
Conclusion
The DOMA denies fundamental basic human rights to Washington's gay and
lesbian citizens, human rights that impact the very core of their everyday
lives. The plaintiffs in this case represent the ever-growing diversity of
the openly gay community in Washington. They are teachers, attorneys,
ministers, and foster parents. In their everyday lives they are bosses,
coworkers, neighbors, clients, parents, friends, and volunteers. It is in
these seemingly mundane, everyday roles that the discrimination imposed by
the DOMA is deeply felt, but it is nowhere more wounding than in their very
homes. Unless the concept of equal rights has meaning there, it has little
meaning anywhere.
"Those who cannot remember the past are condemned to repeat it." George
Santayana, The Life of Reason or The Phases of Human Progress: Reason in
Common Sense 82 (1953). Future generations of justices on this court and
future generations of Washingtonians will undoubtedly look back on our
holding today with regret and even shame, in the same way that our nation
now looks with shame upon our past acts of discrimination. I will look
forward to the time when state-sanctioned discrimination toward our gay and
lesbian citizens is erased from our state's law books, if not its history.
I dissent.
AUTHOR:
Justice Bobbe J. Bridge
WE CONCUR:
1 While exact figures are not available, particularly where lesbians are
concerned, homosexuals likely comprise anywhere from 1 to 10 percent of the
population. See The Shrinking Ten Percent, Time Magazine, Apr. 26, 1993,
at 27. Thus, no matter what figure within that range one espouses, it is
indisputable that gays and lesbians are a marked minority.
2 For example, unless a municipality provides otherwise, under Washington's
new law gays and lesbians have no access to a partner's 'medical, life, and
disability insurance, hospital visitation and other medical decision making
privileges, spousal support, intestate succession, homestead protections,
and many other statutory protections.' Baker v. State, 170 Vt. 194, 744
A.2d 864, 870, 883-84 (1999). See Chauncey, supra, at 111-16 (detailing
the myriad legal vulnerabilities still suffered by gays and lesbians even
where they are afforded protections in employment, housing, and lending).
3 Badgett suggests that the stereotype about the wealth of homosexuals is
based on data gathered from marketing research specifically targeted at
wealthier homosexuals, rather than on empirical data gathered in economic
studies. Badgett, supra, at 24-26.
4 I note that while evidence of political powerlessness has consistently
been linked to the areas explored above, there are other areas not
discussed by the parties that might have evinced a lack of political power.
For example, this discussion might have benefited from a study of the
financial resources of various gay and lesbian organizations as compared to
other agenda-based organizations, particularly in the area of lobbying.
5 In addition to concluding that gays and lesbians as a class are
politically powerful, the plurality and concurrence also conclude
homosexuality is not an immutable characteristic. Neither science nor
religious tenets can conclusively prove or disprove this proposition.
Indeed, the resolution of this question has proved to be something of a
struggle for courts. Compare High Tech Gays, 895 F.2d at 573-74
(concluding that homosexuality is not immutable for the purpose of an equal
protection analysis because it is behavioral and one could refrain from the
conduct) with Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1093 (9th Cir.
2000) (holding that sexual orientation and sexual identity are immutable).
But the law can resolve this question. Rather than being merely an
unchanging characteristic, ''immutability' may describe those traits that
are so central to a person's identity that it would be abhorrent for
government to penalize a person for refusing to change them, regardless of
how easy that change might be physically.' Watkins v. United States Army,
875 F.2d 699, 726 (9th Cir. 1989) (Norris, J., concurring); see Hernandez-
Montiel, 225 F.3d at 1093. Courts and legislators therefore should not
conclude that homosexuality is mutable because reasonable minds disagree
about the causes of homosexuality or because some religious tenets forbid
gays and lesbians from 'acting on' homosexual behavior. Instead, courts
should ask whether the characteristic at issue is one governments have any
business requiring a person to change. Viewed in that light, homosexuality
should properly be considered as a static characteristic. While one may
debate the 'causes' of homosexuality, there can be little argument that the
expression of consensual sexual, affectionate, or romantic attraction is an
integral part of an individual's personal and social identity. Amicus
Curiae Br. of Am. Psychological Ass'n at 8-10 (arguing that '{O}ne's sexual
orientation defines the universe of persons with whom one is likely to find
the satisfying and fulfilling relationships that, for many individuals,
comprise an essential component of personal identity.').
6 I do not mean to imply that all religious organizations object to same-
sex marriage. Some have been quite outspoken in support of the gay and
lesbian members of their congregations who wish to marry. Indeed, a
coalition of 18 Washington churches, temples, and synagogues filed an
amicus brief in support of the plaintiffs in this case. As discussed
below, I agree with Judge Downing that it is not for secular government to
choose between religions or take moral or religious sides in this debate.
Andersen v. King County, No. 04-2-04964-4, 2004 WL 1738447, at *8 (King
County Super. Court Aug. 4, 2004).
7 In some religions, the church's involvement in marriage has evolved over
time. For example, one historian notes that the sacramental character of
marriage was not formally adopted by the Roman Catholic Church until the
mid-fifteenth century. Chauncey, supra, at 79. It was not until the
sixteenth century that the Catholic Church required a ceremony in the
presence of a priest. Id.
8 While considering the history of civil marriage in this nation in
general, and in Washington in particular, we should also remember some
'traditional' aspects of the marriage institution that have (quite
correctly) fallen by the wayside. In addition to the anti-miscegenation
laws discussed at length in Justice Fairhurst's opinion, the legal doctrine
of coverture (suspending the very legal existence of a woman during
marriage), restrictions on divorce, restrictions on remarriage after
divorce, and the marital exemption to the crime of rape were all once
widely accepted aspects of the institution of marriage. See, e.g.,
Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141, 21 L. Ed. 442 (1872)
(Bradley, J., concurring); Hernandez v. Robles, 26 A.D.3d 98, 805 N.Y.S.2d
354, 381-82 (2005) (Saxe, J., dissenting). If nothing else, history
demonstrates that marriage is not a stagnant institution, and any scholar
of the history of women's rights in this country is aware of the evolving
nature of the institution in our society.
9 Unless otherwise noted, the legislative history materials discussed
in this opinion are on file with the Washington State Archives.
10 For additional examples of blatantly discriminatory language in the
legislative history of the federal DOMA, on which Washington's DOMA was
based, see Note: Litigating the Defense of Marriage Act: The Next
Battleground for Same-Sex Marriage, 117 Harv. L. Rev. 2684, 2701-04 (2004).
11 Justice J.M. Johnson's concurrence argues that the DOMA does not
discriminate against gays and lesbians because it does not allow anyone to
marry a person of the same sex, even heterosexual people, and also does not
prohibit gays and lesbians from marrying members of the opposite sex.
Concurrence (J.M. Johnson, J.) at 16. I am reminded of the adage
cautioning that to say too much says nothing at all. A marriage is
frequently distinguished from other social relationships by the presence of
romantic love and sexual attraction. Heterosexual people by definition are
not interested in pursuing a sexual or romantic relationship with
individuals of the same sex and thus are likely not interested in marrying
them. Therefore, the DOMA is not at all applicable to heterosexual people.
Its irrelevance to heterosexuals does not translate into a lack of
discrimination against homosexuals. Likewise, as discussed in more detail
below, it is equally imprudent to conclude that the DOMA is not
discriminatory because it affords homosexuals the ability to marry a person
for whom they have no romantic or sexual attraction.
12 In his concurrence, Justice J.M. Johnson draws a comparison between
same-sex marriage and polygamy. Concurrence (J.M. Johnson, J.) at 32.
Comparing same-sex marriage to polygamy is like comparing chalk to cheese.
Of course, each of the plaintiffs in this case seeks to marry a person whom
they love; none seeks to enter into a plural marriage. Indeed, in
Lawrence, Justice Antonin Scalia was unable to convince a majority of the
United States Supreme Court that the specter of polygamy should overcome
the Lawrence Court's legal reasoning. The same tactics should also fail
here. See Amicus Curiae Br. of the Libertarian Party of Washington State
et al. at 2 n.1 ('The 'slippery slope' issues raised by Appellants . . .
should not provide sensationalistic distractions.').
13 In fact, a recent review of 15 different studies addressing the effects
on children of growing up in a same-sex household reveals that those
children 'are no more likely to have problems with self-esteem,
psychological adjustment, or gender identity than kids {raised} with
heterosexual parents.' Kids With Gay Parents Do Just Fine, Parents
Magazine, Feb. 2006, at 46.
14 I also note that Justice J.M. Johnson's concurrence argues a child
'thrive{s} best' in families headed by his or her biological father and
mother. Concurrence (J.M. Johnson, J.) at 38. This argument not only
invalidates the many healthy and happy family constellations consisting of
adoptive parents, foster parents, or stepparents, but it is also premised
in part on the astonishing and scientifically faulty notion that
homosexuals are often pedophiles. Concurrence (J.M. Johnson, J.) at 38
n.42 (citing CP at 358 (testimony from Family Council relaying abstracts of
studies purporting to find high percentage of gay men are pedophiles)). In
fact, this corrosive stereotype has been debunked by noted experts in the
field of psychology and in courts alike. See, e.g., Marc E. Elovitz,
Adoption by Lesbian and Gay People: The Use and Mis-Use of Social Science
Research, 2 Duke J. Gender L. & Pol'y 207, 216-17 & n.55 (1995) (citing
Gregory M. Herek, Myths About Sexual Orientation: A Lawyer's Guide to
Social Science Research, 1 Law & Sexuality 133, 156 (1991)); Dale v. Boy
Scouts of Am., 160 N.J. 562, 734 A.2d 1196, 1243 (1999), rev'd on other
grounds, 530 U.S. 640 (2000) ('The myth that a homosexual male is more
likely than a heterosexual male to molest children has been demolished.').
15 In contrast to the lack of legitimate reasons for justifying the DOMA,
there is voluminous argument presented by amici and parties attesting to
the psychological, social, financial and political harm prohibitions like
the DOMA visit upon the partners in a same-sex relationship, and upon any
children raised within that union.
|
|
eService Center